Rural Press Ltd v Australian Competition & Consumer Commission

(2002) 118 FCR 236; [2002] FCAFC 213

Full Court of the Federal Court

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Interrogate

Catchwords

1. Trade Practices
2. › Restrictive trade practices
3. › Arrangements substantially lessening competition
4. › Arrangement between regional newspaper publishers
5. › Whether arrangement had purpose or effect of substantially lessening competition
6. › Whether degree of competition too slight to constitute substantial lessening
7. › Trade Practices Act 1974 (Cth), ss 45(2)(a)(ii), 45(2)(b)(ii)
1. Trade Practices
2. › Restrictive trade practices
3. › Exclusionary provisions
4. › Whether arrangement contained exclusionary provision
5. › Whether purpose of preventing supply to 'particular persons or classes of persons'
6. › Whether persons defined by reference to competitive activity rather than as identifiable persons or classes
7. › Trade Practices Act 1974 (Cth), ss 4D(1)(b)(i), 45(2)(a)(i), 45(2)(b)(i)
1. Trade Practices
2. › Misuse of market power
3. › Taking advantage of market power
4. › Whether corporation takes advantage of market power in market A by threatening to compete in market B where it has no power
5. › Whether corporation could have acted in same way without market power
6. › Trade Practices Act 1974 (Cth), s 46(1)
1. Trade Practices
2. › Market definition
3. › Whether relevant market correctly identified as Murray Bridge newspaper market
4. › Whether market should include regional commercial radio stations
5. › Trade Practices Act 1974 (Cth), s 4E

Quick Take

Section 46 misuse of market power claims require the operative conduct to constitute a use of power in the market where the power exists, not merely conduct in another market facilitated by resources that happen to be associated with the first market. The 'counterfactual' test from Melway requires asking whether the corporation could have acted the same way without market power in the relevant market.